Date: 2022-03-03

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 from an impoundment pursuant to Section 55.1(3) of the Act.

Between:

Gopika Saini

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER ON MOTION

ADJUDICATOR: Evelyn Spence, LL.B.

APPEARANCES:

For the Appellant: No one attending

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: February 18, 2022

DECISION AND ORDER ON MOTION

A. Overview

1The appellant seeks an order of the Tribunal granting an extension of time to allow her to file an appeal outside the legislated timeline under the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). The appellant’s vehicle was impounded on October 30, 2021 because it was being driven by an individual whose driver’s licence was under suspension.

2The appellant’s Notice of Motion was received by the Tribunal on January 19, 2022. The motion hearing was originally scheduled to be heard by teleconference on January 28, 2022.

3Since the appellant’s Notice of Motion was delivered to the Tribunal offices by mail and only provided a physical return address and not an email address, the Tribunal sent its original Notice of Motion Hearing to the appellant by mail, and to the respondent by email, on Monday, January 24, 2022.

4The appellant did not attend the January 28th motion hearing and I adjourned the matter on the basis that I was not satisfied that the appellant had been provided with sufficient notice. I ordered the motion hearing be rescheduled and, given the difficulties the Tribunal and the respondent had in contacting the appellant before the January 28th motion hearing, I directed the appellant to provide an email address and phone number where she could be reached to communicate about the Tribunal proceedings.

5The motion hearing was re-convened on February 18th, three weeks after the originally scheduled motion hearing date. The respondent’s agent attended, but the appellant did not. I delayed starting the motion hearing by 25 minutes to allow the appellant to participate, and during that short recess, I satisfied myself that the appellant had been duly notified of the Tribunal’s proceedings. Tribunal staff confirmed that the following documents were all mailed to the appellant at the address indicated in her Notice of Motion forms:

• The Adjournment Order - sent on January 31, 2022;

• The Notice of Motion Hearing - sent on February 2, 2022;

• Reminder of Motion Hearing - sent on February 11, 2022.

6Tribunal staff also advised that they had called the two phone numbers that were included in the appellant’s Notice of Motion materials on the following dates: January 20, February 9, February 10 and February 17. None of the Tribunal’s calls were answered.

7Additionally, the respondent’s agent advised that he had couriered the respondent’s submissions to the appellant on or about January 31, 2022; again to the address included in the appellant’s Notice of Motion. The materials were received, and a signature was obtained by an individual at the appellant’s address.

B. ISSUE AND RESULT

8The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time to file her appeal regarding the impoundment of her motor vehicle.

9For the reasons that follow, I find that she has not, and the motion is denied.

C. LAW AND ANALYSIS

10Pursuant to section 9 of Ontario Regulation 631/98 (the “Regulation”) under the Act, an appeal of an impoundment is required to be filed within 15 days after the day the vehicle was detained, together with the fee established by the Tribunal.

11The Tribunal has jurisdiction to extend the time for filing an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, which reads:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

b) give the directions that it considers proper as a result of extending the time.

12The Tribunal has consistently been guided by the following factors when deciding whether there are grounds to grant an extension of time:

a) The existence of a bona fide intention to appeal within the appeal period;

b) The length of the delay;

c) The merits of the appeal; and

d) Prejudice to the other party.¹

13The appellant bears the onus of establishing that the “justice of the case” requires that the time to appeal be extended. The test requires a balancing of the factors in the context of the facts of the case.

14Central to the appellant’s position on this motion is that she was not aware of the impoundment until after the vehicle was released. If true, this would impact my analysis of the first two factors and accordingly, I have considered them together.

Bona fide intention to appeal within the appeal period and length of delay

15The appellant’s written statement within her Notice of Motion asserts that she was not aware of the impoundment until she received the Notice of Motor Vehicle Impoundment/Release (the “Notice”) in the mail on December 22, 2021, which was eight (8) days after the vehicle was available for release. She further states that she did not know she had the option to appeal until after she made contact with a Ministry of Transportation representative. She did not provide a date when this took place.

16The respondent’s agent testified that the respondent would have mailed the appellant the Notice on or shortly after the date the vehicle was impounded and he confirmed that the Notice included the appellant’s correct mailing address, as indicated in her motion materials. The Notice includes an explanation of the appeal process, and provided December 14, 2021 as the release date for the vehicle.

17In the absence of any contrary evidence, I find it likely that the Ministry of Transportation did issue and deliver the Notice to the appellant, which gave notice of the impoundment and the appeal timelines. There is no evidence to suggest that the appellant intended to appeal the impoundment within the appeal period, which expired on November 14, 2021.

18The length of the delay in this matter is also considerable. The appellant filed her notice of motion with the Tribunal 65 days after the 15-day statutory appeal period had expired and 81 days after the impoundment of her vehicle.

19Even if it were true that the Notice was not delivered to the appellant during the impound period, one wonders where the appellant thought her vehicle had been for that almost two-month period, and what efforts she made to locate it. Moreover, the appellant’s only contact with the Tribunal occurred when she filed her motion materials, almost a month after she allegedly first received notice of the impoundment. Understanding, as she would have at that time, that she was late in filing an appeal, one would expect her to take steps to quickly file her motion to extend the timelines as soon as she learned of the appeal process, had she seriously had an intent to do so.

The merits of the appeal

20On a motion to extend time, the appellant need not establish her case on a balance of probabilities but only that her version of events, if believed, could reasonably result in a favourable outcome.

21The appellant did not specify in her materials the exact ground(s) for appeal, however her written statements suggest that she may be appealing on the ground that the driver was not subject to an interlock condition at the time of impoundment. She asserts that the driver holds a valid out-of-province licence and surrendered his Ontario licence. Alternatively, or perhaps additionally, the appellant appears to be advancing a claim that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not then subject to the condition that he only drive vehicles equipped with an ignition interlock device.

22In the motion hearing, the driver’s Extended Driver Record was produced, confirming that he is subject to a mandatory ignition interlock condition. The appellant’s vehicle was not equipped with such a device at the time it was impounded.

23There is no definition of “due diligence” in the Act, and the required actions depend upon the particular circumstances and an assessment of what a reasonable and cautious person would do under those circumstances. Ultimately, the Act’s objective is to promote safety by deterring vehicle owners from deliberately or carelessly allowing suspended drivers to drive their vehicles.

24In her motion materials, the appellant shared her understanding that the driver had a DUI charge from 2013, and that he completed the “Back on Track” program on October 19, 2016. In my view, given her knowledge of this past driving record, the appellant would be subject to a heightened responsibility because she knew the driver had been convicted of a prior driving-related offence that suspended his licence. As a licence holder and owner of a vehicle, she had a responsibility to ensure the safety of the motoring public, and this requires taking steps to ensure the driver was eligible to lawfully operate her vehicle.

25In light of the above, I find that the evidence before me fails to establish that the appellant’s version of the events, if believed, could reasonably result in a finding that she exercised due diligence under the Act. I am of the view that this ground of appeal would not succeed, and the appellant has not established a ground of appeal that would have justified the release of her vehicle, if filed within the appeal period. Ultimately, while not devoid of merit, I find that the appeal is not likely to succeed, if allowed.

Prejudice

26Finally, the respondent’s agent noted that the appellant’s delay in filing would result in significant prejudice to the respondent. Specifically, if the appellant were allowed to proceed and be successful in her appeal, the Registrar would be responsible for paying impound fees for the full 45-day period of impoundment. These fees far exceed what the Registrar would otherwise have been required to pay had the appeal been filed and the matter heard within the timelines set out in the statute.

D. DECISION

27In considering each of the four factors listed above, I find that the appellant has not established reasonable grounds to support an extension of time for the filing of her appeal. The justice of the case requires that the request for an extension be denied.

28It is worth noting again that the appellant was not present at the motion hearing to provide evidence or clarify any of the statements she made in her motion materials.

E. ORDER:

29The appellant’s motion is dismissed, and the Tribunal’s file shall be closed.

Footnotes

1. 111913 v. Registrar of Motor Vehicles, 2019 CanLII 32250; 7816 v. Registrar of Motor Vehicles, 2013 CanLII 334.